Vallavanti v. Armour & Co.

• Decision Date: 01 July 1927
• Citation: 260 Mass. 417,157 N.E. 527
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: VALLAVANTI v. ARMOUR & CO.

260 Mass. 417

157 N.E. 527

VALLAVANTI

v.ARMOUR & CO.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1927.

Exceptions from Superior Court, Middlesex County; John D. McLaughlin, Judge.

Action of tort by Joseph Vallavanti against Armour & Co. to recover for personal injury from being struck by defendant's automobile. Verdict for plaintiff, and defendant excepts. Exceptions sustained. Judgment for defendant.

1. Master and servant k302(2)-Owner held not liable for injuries to pedestrian, unless automobile was being used in, and driver was acting within, scope of employment.

Although defendant owned automobile striking pedestrian, and although person driving it was in its employ, defendant was not liable, unless, when the accident occurred, the automobile was being used in, and driver was acting within, scope of his employment.

2. Master and servant k302(6)-Motor truck chauffeur, driving employer's runabout after hours for own pleasure, in violation of instruction, held acting outside scope of employment.

Evidence that chauffeur, employed to drive a motor truck in delivery of goods, was expressly prohibited by employer's rules from carrying passengers, and that, after taking salesman's runabout to drive another employee home after working hours instead of returning to employer's plant, he drove across country to his home, and after supper set out for employer's garage to put up machine, during which trip he struck and injured a pedestrian, held to require directed verdict for employer in pedestrian's action for injuries, in that it was not shown chauffeur was acting in scope of employment.

J. J. Cummings, of Boston, for plaintiff.

T. Hunt, of Boston (J. S. Stone, of Boston, on the brief), for defendant.

WAIT, J.

The plaintiff was hastening across Waverly street in Framingham in order to board an electric street car bound for Ashland when he was struck and injured by the defendant's automobile coming from the direction of Ashland and driven by one Pizzeri. After a verdict for the plaintiff, the action is before us upon the defendant's exceptions.

The essential questions for decision are, wherther there was evidence to be submitted to the jury upon the issues of contributory negligence and of liability of the defendant for acts of Pizzeri; whether certain requests for instructions to the jury were properly denied; and whether certain portions of the charge state the law accurately.

The defendant moved that a verdict be directed in its favor. If that motion should have been granted, it becomes unnecessary to consider other questions raised by the exceptions.

[1][2] Although it owned the automobile, a runabout, and although Pizzeri was in its employ, the defendant was not liable unless, when the accident occurred, the runabout was being used in and he was acting within the scope of his employment. Stone v. Commonwealth Coal Co. (Mass.) 156 N. E. 737.

There was no dispute that Pizzeri had been in the employ of the defendant for more than two years as a chauffeur whose duty it was to drive a motor truck in the delivery of goods from its plant at Framingham. His working day extended till five o'clock in the afternoon. He had full charge of the truck and a key to the garage. He did, in addition, odd jobs of sweeping, cleaning up and taking stock under the direction of Benjamin, the shipper and receiver of goods at the plant, who gave most of their orders to the drivers. His work took him to surrounding towns with deliveries. He dined at noon where he happened to be, and at home if his route of the day made it possible. He lived on Waverly street, a little over a mile and three quarters from the plant and garage. It was the plaintiff's contention that, on the evening of the accident, by order of Benjamin, after his delivery work was done and he had put up...